N8509

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  306 OF 2018

BETWEEN:
TOYOTA TSUSHO (PNG) LIMITED trading as ELA MOTORS
Plaintiff/Cross-Defendant

AND:
HILDA TSINGOLIE
Defendant/Cross-Claimant

Waigani: Thompson J
2020:  15th September
DAMAGES - Employer claiming damages for breach of contract by employee - failure to act honestly and with fidelity - implied term of contract - S36 of Employment Act - failure to act honestly and with fidelity is ground for summary dismissal - necessity for Plaintiff to prove each element of cause of action - standard is balance of probabilities.
Counsel
Mr G. Gomara, for the Plaintiff / Cross – Defendant

15th September, 2020
1.	THOMPSON J:    The Plaintiff is claiming damages against the Defendant for breach of her contract of employment.  The Defendant filed a Defence and Cross-claim in which she denied the breach, and claimed damages for wrongful suspension and for stress and anxiety, supported by her own affidavit.
2.	The Defendant then took no further part in the proceedings since 2018.  She did not give notice of her intention to rely on any affidavits, or to cross-examine the Plaintiffs’ witnesses.  I am satisfied that all the documents including the Notice of Trial have been served on the Defendant, partly in person and partly pursuant to Order 6 Rules 13 and 14, and I direct that the affidavits and Notice of Trial be taken to have been served on the Defendant on their filing dates.
3.	The Trial therefore proceeded in her absence.
4.	The Plaintiff tendered three affidavits and a spreadsheet, and called one witness.  There was no evidence for the Defendant.
5.	The Plaintiff’s claim is that the Defendant dishonestly misapplied its monies totalling K134, 497.38, and pleads that she was thereby in breach of the implied terms of her employment that she would act in good faith and fidelity in the discharge of her employment as a cashier.
6.	Pursuant to S 36 of the Employment Act, an employee who misconducts herself by acts inconsistent with the due and faithful discharge of her duties or who is guilty of fraud or dishonesty, is entitled to be summarily dismissed without notice or payment in lieu.
7.	It follows that discharging her duties with due care and faithfully, and being honest, are implied terms of a contract of employment.  This is in addition to the common law implication of such terms into the terms of contract.
8.	The Plaintiff’s evidence was that the Defendant was the only cashier in the Buka office, and was the only person responsible for receiving cash and cheques from customers, and banking them.  Evidence of the Plaintiffs’ investigation was contained in the affidavits and spreadsheet, including a signed admission by the Defendant to fraudulently taking K20,218.88 in 2018.  The evidence showed that in previous years, the Plaintiff had given the Defendant four written warnings about her conduct in receiving cheques from customers.  The evidence showed that she was suspended on 8 February 2018, and after the investigations were concluded, her employment was summarily terminated in writing, on 20 March 2018, and that the Defendant signed an acknowledgment of receipt of the termination letter.
9.	The Plaintiffs’ evidence was uncontested.
10.	The law to be applied to a claim for breach of contract, is well-settled.   The pleadings must disclose a valid cause of action, and the Plaintiff must prove his claim by producing credible and admissible evidence to prove the essential elements of the cause of action on both liability and quantum.  The standard of proof is on the balance of probabilities (see Timothy Mong v George Doa (1997) N1540, PNGBC v Jeff Tole (2012) SC 694, et al).  
11.	The Plaintiff has pleaded the essential elements of the claim for breach of contract, and has produced credible and admissible evidence to prove that the Defendant acted dishonestly and fraudulently, and did not act in good faith and with fidelity in her employment as a cashier.  The evidence was sufficient to show that, on the balance of probabilities, the Defendant dishonestly misapplied the Plaintiff’s monies totaling K134, 497.38.
12.	The Plaintiff called no evidence in relation to its separate claims for general damages. 
13.	In relation to the Cross-Claim, the Defendant called no evidence.  The Plaintiffs’ evidence rebutted the Claim that the Defendant had been suspended indefinitely, and showed that she had in fact been terminated on 20 March 2018.  There was therefore no basis for the Claim that the Plaintiff had breached the contract, and no basis for any award of damages for breach.
14.	Further, it is well settled by PNGBC v Jeff Tole and many other cases, that damages cannot be awarded in the absence of actual and credible evidence of the loss.  In the case of a claim damages for emotional distress, this means that there should be medical and other expert evidence to show a loss.  In the absence of such evidence, no award can be made.
15.	For this reasons, I make the following Orders:
1.	Judgment is entered for the Plaintiff against the Defendant in the sum of K134, 497.38, plus interest at the rate of 8% per annum from the date of judgment until payment, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.
2.	The Defendant’ s cross-claim filed on 31 May 2018, is dismissed.
3.	The Defendant is to pay the Plaintiffs’ costs, to be agreed or taxed.
________________________________________________________________
William Igo as In-house Lawyer: Lawyers for the Plaintiff